Associate Attorney
In Miller v. ARCPE Bahamas, LLC, 50 Fla. L. Weekly D2464 (Fla. 5th DCA 2025), the note holder (and later its successor, ARCPE) pursued collection on promissory notes tied to a failed Bahamas development. When the borrowers stopped making interest-only payments and didn’t pay the balloon amounts at maturity, the lender sought judgment for the amounts due under the notes.
But the case turned on a strategic tension: acceleration versus maturity. ARCPE successfully maintained that the debt was not accelerated (a position that mattered in the statute-of-limitations posture), and obtained relief based on nonpayment at the notes’ maturity dates.
That strategy worked—until attorney’s fees. The notes’ fee provision applied only if the note holder “required” immediate payment in full following default (i.e., accelerated the debt). Because ARCPE prevailed on a theory that the debt was not accelerated, the Fifth DCA held ARCPE could not then pivot and rely on an acceleration-based fee clause. The appellate court reversed the fee award and applied judicial estoppel to prevent ARCPE from taking inconsistent positions in the same litigation.
Practice pointers
Read the fee clause before choosing your theory. If the only fee entitlement is triggered by acceleration, a “no acceleration” strategy may protect the merits (and limitations) but eliminate fee recovery.
Keep your positions consistent across pleadings, motions, and summary judgment papers. Courts will not always allow you to disclaim acceleration for one purpose, then invoke it for another.
For defense counsel, track the lender’s acceleration arguments carefully. If the lender wins by insisting the debt was not accelerated, challenge any later attempt to collect fees reserved for accelerated debt.
Takeaway: You can’t have it both ways. If you win by arguing the debt wasn’t accelerated, don’t expect to recover attorney’s fees that the contract reserves for acceleration cases.
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